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1969 DIGILAW 31 (GAU)

Bansidhar Agrawala v. Purnananda Sharma

1969-07-11

R.S.BINDRA

body1969
ORDER This revision petition by Bansidhar Agrawala and 11 others is directed against the order dated 8-7-1966 of the District Judge, Manipur, by which he allowed the appeal filed against the order of the Munsiff by which the latter had rejected the application of the present respondent Purnananda Sharma made under Order 9, Rule 9 of the Code of Civil Procedure, hereinafter called the Code, for restoration of his suit dismissed on 19-5-1961. 2. The facts bearing on this revision petition are that the suit of Purnananda Sharma was dismissed in default on 19-5-1961 under Rule 3 of Order 17 of the Code. Purnananda Sharma filed an appeal against the decree of dismissal and it was heard by the Additional District Judge Shri O. Thambal Singh. The appellate Court declared in its order dated 11-2-1963 that the suit should be considered to have been dismissed not under Rule 3 but under Rule 2 of Order 17 of the Code. It, therefore, set aside the decree dismissing the suit and simultaneously directed that the plaintiff should be given an opportunity to move an application for setting aside the order dismissing the suit in default. Pursuant to that direction Purnananda Sharma filed an application on 6-3-1963 in the Court of the Munsiff under Order 9, Rule 9 of the Code. That application was rejected on the score that it was time barred under Article 163 of the Indian Limitation Act of 1908. In the opinion of the learned Munsiff, it was obligatory on Purnananda Sharma to move the application for setting aside the dismissal of the suit in default within 30 days and that the direction given by the appellate Court in its order dated 11-2-1963 that the plaintiff should be given an opportunity to make an application for restoration of the suit could not extend the period of limitation. Purnananda Sharma challenged the verdict of the Munsiff by taking an appeal to the Court of the District Judge. The District Judge accepted the appeal, set aside the order dated 19-5-1961, and restored the suit to the file of the Munsiff. Purnananda Sharma challenged the verdict of the Munsiff by taking an appeal to the Court of the District Judge. The District Judge accepted the appeal, set aside the order dated 19-5-1961, and restored the suit to the file of the Munsiff. The District Judge held, while allowing the appeal, that the order of dismissal dated 19-5-1961 was merged in the order dated 11-2-1963, by which the Additional District Judge had set aside the order dated 19-5-1961, and so the period of 30 days for making the application under Order 9, Rule 9 of the Code had commenced to run from 11-2-1963 and not 19-5-1961. In the present revision petition the validity of this order of the District Judge is assailed. 3. There is no contest between the parties counsel on the points that the Munsiff had gone wrong in dismissing the suit on 19-5-1961 under Rule 3 of Order 17 of the Code and that in the eye of law that dismissal was under Rule 2 of that Order. Shri Manisana Singh, representing the petitioners, urges in this Court, as had been done in the Courts below, that the application made by Purnananda Sharma under Order 9, Rule 9 before the Munsiff was barred by limitation since it was presented more than 30 days after the dismissal of the suit on 19-5-1961. He submits further that the direction given by the Additional District Judge in his order dated 11-2-1963 that Purnananda Sharma should be given an opportunity to make an application for restoration of the suit could not have extended the period of limitation. I agree that the period of limitation prescribed in Article 163 by the legislature could not have been extended by an order, implied or express, of the Additional District Judge despite the fullness of heart to relieve Purnananda of the injustice occasioned to him by the erroneous order of dismissal dated 19-5-1961. Shri Nilamani Singh, the counsel for Purnananda Sharma, has not been able to convince me that the finding of the District Judge that the dismissal order dated 19-5-1961 had merged into the appellate order dated 11-2-1963 of the Additional District Judge and as such the period of limitation for an application under Order 9, Rule 9 should be counted from the latter date is sound in law or principle. Article 163 of the Limitation Act prescribes that the period for an application to set aside an order of dismissal in default shall begin from "The date of the dismissal". No authority has been cited before me to support the proposition that the period of limitation mentioned in column 2 of Article 163 can be extended by any order made in appeal filed against the dismissal of the suit in default. It may be appropriately mentioned that Section 5 of Limitation Act does not apply to applications mentioned in Article 163 of the Act. Therefore, I am unable to agree with the District Judge that the period of limitation for the application made by Purnananda under Order 9, Rule 9 of the Code had commenced from 11-2-1963 and not from 19-5-1961. 4. Nevertheless, the present revision petition, in my opinion, merits dismissal for I feel satisfied that the suit of Purnananda stood restored by the order dated 11-2-1963 of the Additional District Judge and hence has to be decided on merits. It is for the reason that the decree of dismissal dated 19-5-1961 was specifically quashed by the appellate order dated 11-2-1963 and so there remained no necessity for Purnananda to approach the trial Court with an application under Order 9, Rule 9 for setting aside the dismissal in default. The only order of the trial Court which operated against Purnananda was the one dated 19-5-1961 and since the decree drawn on the basis thereof had been set aside on 11-2-1963, there was no hurdle in the way of Purnananda in calling upon the trial Court to proceed to try the case on merits or in the way of the Court to adopt that course. The direction given in the appellate order that Purnananda should get an opportunity to make an application for vacating the dismissal in default was a mere surplusage in the context that the decree of dismissal had been specifically set aside, and as such Purnananda could have ignored that direction and that too with impunity. Therefore, I agree with the learned District Judge, though for different reasons, that the learned Munsiff was not justified in reaching the conclusion, while dismissing the application under Order 9, Rule 9, that the order dated 19-5-1961 dismissing the suit was still operative. 5. The matter in controversy can be looked at from another standpoint as well. Therefore, I agree with the learned District Judge, though for different reasons, that the learned Munsiff was not justified in reaching the conclusion, while dismissing the application under Order 9, Rule 9, that the order dated 19-5-1961 dismissing the suit was still operative. 5. The matter in controversy can be looked at from another standpoint as well. It is well settled that interference in revision is discretionary with the Court unlike in appeal. It is equally well settled that interference in revision is to be made only for advancing and not defeating the ends of justice. In dismissing the suit on 19-5-1961 under Rule 3 of Order 17, the trial Court had perpetrated a great injustice to Purnananda. The appellate Court tried to undo that injustice by its order dated 11-2-1963 by quashing the decree dated 19-5-1961, but at the same time it condemned Purnananda, without justification, to the task of moving an application under Order 9, Rule 9, of the Code. It should have been clear to the appellate Court that Section 5 of the Limitation Act did not apply to applications made under Order 9, Rule 9 and that by 11-2-1963, the date of the appellate order, the period of limitation prescribed by Article 163 of the Limitation Act for making such an application had run out. Therefore, the course suggested by the appellate Court was clearly unavailing to Purnananda. While dismissing the application made by Purnananda under Order 9, Rule 9, the trial Court recorded the finding that he (Purnananda) was seriously ill on 18th and 19th of May, 1961, and so there was justification for his non-appearance in Court on 19th. This finding of the trial Court was not challenged before the District Judge, and Shri Manisana Singh has been very fair in conceding that, that finding has to be accepted by this Court, being Appellant finding of fact. In the background of the circumstances just reproduced, it would be perpetrating injustice to Purnananda if I were to interfere with the order of the District Judge. And sitting in revision, I am most reluctant to adopt that course. 6. I may usefully invite attention to the observations of the High Court of Lahore in the case of Hazara Singh v. Dittaram, AIR 1930 Lal 417(2), in support of the conclusion recorded above. And sitting in revision, I am most reluctant to adopt that course. 6. I may usefully invite attention to the observations of the High Court of Lahore in the case of Hazara Singh v. Dittaram, AIR 1930 Lal 417(2), in support of the conclusion recorded above. The facts of that case were that a creditor made a petition under Section 9 of the Provincial Insolvency Act, hereinafter called the Act, which appeared to be barred by time. The District Judge admitted the petition by extending the period of limitation under Section 5 of the Limitation Act read with Section 78 of the Act. The latter section gives power to the Court to grant extension of time in respect of "appeals and applications" and so in terms it did not apply to a petition made under Section 9 of the Act. Despite that legal hurdle, the High Court refused to interfere with the order of the District Judge extending time in favour of the creditor on the score that it was not a fit case for inteference in revision. The High Court observed that interference in revision is discretionary and that in face of the circumstances established in the case "inteference is likely to work not in the interests of justice, but rather against it." The facts of this Lahore case obviously bear a close parallel to those of the case in hand. Here, too, the application under Order 9, Rule 9 was barred by time and the District Judge had extended that time on the basis already mentioned above. I am, therefore, not inclined to interfere with the discretion exercised by the learned District Judge because the interference by this Court would thwart rather than advance the ends of justice. 7. For the reasons given above, the revision petition fails and so I reject the same. However, since the petitioners had a good case to argue in this Court, I have decided to leave the parties to bear their own costs and order accordingly. Advocates fee Rs. 25/-. 8. Announced. Petition rejected.